I've bargained "virtually" several times, had pre-hearing conference calls via Zoom, and have had an arbitration by Zoom. My clients have mixed feelings about those experiences. Virtual bargaining has been particularly unpopular.
So what do parties do when the other has had enough of this new (sort of) normal and wants to go back to the old, familiar way of bargaining? And what if the other party won't agree, for whatever reason? Like the fight against COVID-19 itself, this is uncharted territory.
The Legal Framework
Face-to-Face Bargaining Is Required for Effective Bargaining
The National Labor Relations Board (NLRB) has long held, with courts' approval, that face-to-face negotiations between an employer and its employees' union is "an elementary and essential condition of bona fide bargaining," and that collective bargaining is most effectively carried out by personal meetings and conferences of the parties at the bargaining table. Because of all this, the National Labor Relations Act imposes a duty to meet.
Without mutual agreement, neither party meets its obligation to bargain with its counterpart by inviting (or demanding) an exchange of written proposals before any face-to-face negotiations. This principle is especially true in first contract cases where the parties haven't yet begun the bargaining process and when those proposals would have been subjected to the give-and-take of negotiations.
Under existing law, a party has the right to demand face-to-face bargaining. But one could argue that in the middle of COVID-19 the legality might be irrelevant; just because one can do something, the question as to whether one should do something remains.
Bargaining to Impasse by Refusing to Meet Face-to-Face Is Unlawful
In contract negotiations, there are permissive subjects and mandatory subjects of bargaining; there are subjects you may bargain over and subjects you must bargain over. Basically, mandatory subjects are those that relate directly to the employees' hours, wages, and working conditions.
Because the location and format for bargaining do not impact the employees' terms and conditions of employment, it's considered a permissive subject. The difference is important to the extent the parties reach a stalemate: it's lawful to reach impasse over mandatory subjects, but a party may not insist on a permissive subject if it creates a logjam that prevents the parties from reaching a complete agreement.
In the virtual versus face-to-face context, the NLRB has repeatedly found that when a party to bargaining insists on a format other than face-to-face bargaining—by conference call, videoconference, even in adjacent rooms with a mediator shuttling back and forth—the insistent party has unlawfully created an impasse.
Is an impasse in the middle of a pandemic excusable, even if the law says otherwise? What would permit it?
A plausible argument could be made that the insisting party's failure to provide an absolutely safe place to meet justifies a refusal to meet. But it's just as plausible that the insisting party can make the bargaining location as safe, or perhaps safer, than suggested by the Centers for Disease Control and Prevention and/or local orders require by providing all the products necessary: surgical grade masks, hand sanitizer, disinfectant wipes, nitrile gloves, adequate ventilation, and enough space to ensure proper distancing.
Is it reasonable for the insisting party to dig their heels in further?
Parties Must Make Their Representatives Available
The reason why insisting to impasse over an alternation to location or format is unlawful is because the parties' mutual obligation to bargain in good faith includes a duty to make its authorized representative available for negotiations at reasonable times and places. Unless the union agrees otherwise, "the [parties] must make [their] representatives available for conferences at the plant where the controversy is in progress, and at reasonable times and places, so that personal negotiations are practicable."
Again, the Board has repeatedly held that it's not enough for one side or the other to insist on having their bargaining representatives connect by telephone or videoconference; the parties need to meet face-to-face for bargaining to be meaningful and effective. But does bargaining via a virtual platform satisfy the obligation given the totality of the circumstances?
One could argue that seeing each bargaining team member's face offers the other an opportunity to observe all it needs to "take the other team's temperature," so to speak. But does that offer enough? With chat functions, it would be impossible to see who is passing notes, which might indicate they are particularly concerned about details of the proposals, and timing of that note-passing, and the lead negotiator's raising the issue might even pinpoint the precise aspect of the proposal that's causing concern.
Demanding That the Parties Passing Proposals by Email Is Unlawful
Under Board law it is unlawful for a party to insist that the other submit its proposals in advance, by mail or email, as a precondition to face-to-face bargaining. And a party fails to meet its "statutory obligation [to bargain collectively] by merely inviting the other to submit any proposition they have to make in writing where either party seeks a personal conference."
Consistent with the principles above, exchanging proposals directly is part of the give-and-take inherent in bargaining; it allows for one side to watch the others' reactions. Are they nodding, shaking their heads, do they look puzzled? Do they all have the same expression? Who's broken ranks? Who do you need to win over? All of that information is vital to bargaining.
Neither Side Can Simply "Go Through the Motions"
When bargaining, neither side needs to agree to the other side's proposals. But there is a mutual obligation to come to the table with an open mind on reaching an agreement. And that willingness to bargain in good faith includes the exchange of proposals and counterproposals.
But it's not enough to just play the part of an employer or union who's shown up to bargain in good faith. "A party does not satisfy its obligations under the Act by operating under the 'mere pretense at negotiations with a completely closed mind and without a spirit of cooperation.'"
Where does that leave an employer or union that demands to bargain face-to-face, but the other party refuses because they aren't convinced to do so in the middle of COVID-19 is a reasonable request? Many questions remain. For example, does either party risk drawing an unfair labor practice charge for refusing to bargain until conditions satisfy their concerns regarding the relative safety of the bargaining location? And what about the so-called optics? Which side could leverage the other's position to characterize the state of bargaining?
The NLRB regional directors, General Counsel, and administrative law judges are required to follow existing law until the Board or the U.S. Supreme Court overturns it. So an insisting party would stand a good chance of prevailing in the short term. But, as noted above, the legal questions are only the beginning of the analysis.
The parties must take stock of the circumstances and make honest assessments of the safety concerns, potential fallout, and the risks of letting time pass before they can come together and do what needs to be done: bargain in good faith, with an open mind towards reaching a complete agreement.
If any employer is concerned about how to proceed, they would do well to consult a traditional labor attorney for guidance.